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Women on Death Row
A Special Report by Claudia Dreifus
"Sunny." " How fatty can a cranberry be?"
Sunny Jacobs doesn't sweat the small stuff. In 1976, when her son Eric was 9 and her daughter Tina, 15 months old, she was convicted of killing two police officers in Florida and sentenced to be the first woman to die in the electric chair under what was then a newly reinstated capital punishment law.
She subsequently spent five years in isolation on Florida's death row and a total of nearly 17 years in a maximum security prison. Her children were taken from her and her common law husband, Jesse Tafero, convicted of the same murders, was put to death in 1990 in an electrocution so grizzly that his head caught on fire.
Now, it is true that Sunny was present at the crime, though in the most passive way. In February of 1976, when she was 28 years old, she'd traveled to Ft. Lauderdale, Florida, from North Carolina where she lived, to meet up with Tafero, Tina s father, an ex-con who she'd fallen for. I didn't know about his background when I met him, she maintains, while picking on her cranberry muffin. "And then, once we were together, it was, you know, love."
In Florida that day, an acquaintance of Jesse's, a career-criminal named Walter Rhodes, offered to drive Sunny, Jesse, and the children to West Palm Beach, where Sunny hoped to pick up some money wired there by her parents.
En route, they were stopped by two police officers, who spotted a gun on the floorboard by Rhodes's feet. Rhodes panicked and shot the officers. Sunny, in the back, covering her children like a human shield, didn't even see the killings. The murders, she says, happened in a blink of an eye.
Almost immediately after their arrests, Rhodes cut a deal with the prosecutor. In exchange for a lesser, second-degree murder charge, he agreed to testify that it was Jesse and Sunny who'd done the killing.
Though Rhodes would fail a lie detector test, and while he was the only one of the trio who tested definitively positive for firing a gun, the authorities committed themselves to his scenario. They illegally kept from the defense Walter Rhodes's polygraph report that contradicted his trial testimony; in fact, the prosecutor told the press that he gave Rhodes a deal because the man had passed his polygraph.
Meanwhile, Sunny and Jesse were painted in the media as a kind of "Bonnie and Clyde" team, thrill-seekers who killed for the fun of it.
Jesse, the first to go to court, was quickly found guilty and sentenced to death. At Sunny's trial, the most persuasive evidence the D.A. had was Walter Rhodes's testimony. To make a defendant with no previous felony convictions eligible, as the phrase goes, for the death penalty, then-Assistant District Attorney Michael Satz brought in a surprise witness: a young woman detained on drug charges around the time of Sunny's arrest. At the D.A.'s behest, Brenda Isham would claim in court that, Sunny, her cellmate for a brief while, had confessed to the killing, said she enjoyed it, and would do it again.
Sunny can recall sitting in the Broward County courtroom numb: "They are talking about you and you don't know what the heck they're talking about. You say to the lawyer, 'Say something, he's lying.' He says, 'Shhh, shhh... don't disturb the proceedings.' And then, when they brought this girl in, I thought, 'This is a joke. Everybody's going to know that you're not going to sit down and tell your life story to some girl who came into jail on drugs one night.'"
About that shushing lawyer: He was an underpaid, court-appointed attorney. "I didn t exactly have O.J. Simpson's 'dream team,'" she sighs. "My parents were told a private lawyer would cost six figures. Who has that? They could have mortgaged their house, but the feeling was, 'You didn't do anything, there's no evidence, the court will give you an attorney. It's just a technicality. You go to court. They'll see you didn't do anything and you'll go home. We were naive. We believed in the system."
As luck would have it, the system assigned her a judge, Daniel Futch, famous throughout Florida for decorating his desk with a sparking model of the electric chair. Up against such powerful forces, Jacobs, guilty at worst of loving unwisely, found herself convicted of two murders she hadn't committed. The jury recommended a life sentence. Judge Futch overruled them and ordered death by electrocution.
Thus Sunny entered history as the first woman sentenced to die after the Supreme Court reinstated the death penalty. Since that 1976 day, some 131 women have been similarly condemned; 10 have been executed nine in the last five years. One knows some of their names: Karla Faye Tucker, Wanda Jean Allen.
For the first five years of her incarceration, Jacobs existed in total isolation in a tiny cinderblock cell. Her guards were prohibited from even speaking to her.
While she waited for her appeals to wend their way through the courts, Jacobs held herself together by practicing yoga and writing to Jesse and her children. At night, she dreamt of Ethel Rosenberg.
A break, a big one, came in 1982, when the Florida Supreme Court overturned her death sentence, converting it to life-imprisonment. Now, Sunny was released into the general population of the Broward Correctional Institution, where she noticed something chilling: The women who were in for murder, normally, were there because they'd been involved with a man.
Ultimately, it would take a woman to help Sonia Jacobs win back her future. In 1990, a childhood pal of Sunny's-- West Coast filmmaker Micki Dickoff --heard about her old friend's situation.
Dickoff became obsessed with the case and spent the next two and a half years investigating it. She used her filmmaking skills to create computer graphic storyboards proving that Walter Rhodes could have fired all the shots. Then, she convinced an ABC news crew to go to Wisconsin, where Brenda Isham the damaging jailhouse witness now lived. Before network cameras, a tearful Ms. Isham told of how the prosecutor had encouraged her to lie about what Jacobs said to her in 1976.
With all this new information and with the reality that Walter Rhodes, in his jail cell, was telling new versions of the old story the Federal 11th Circuit Court of Appeals overturned the original conviction.
Thus, on October 9, 1992, Sonia Jacobs strode out into the Florida sunlight, a liberated woman in every sense of the word.
She is, to this day, one of only two condemned women-- the other is Sabrina Butler of Mississippi who've managed to return to what inmates call, "the free world."
As this is being written, there are 44 women sitting on death rows in some 14 states, less than 2% of the total among the condemned. In the 27 years since the Supreme Court revived capital punishment, ten women have been put to death. As the nation continues to debate the use of executions as a crime prevention strategy, the fate of these women is mostly absent from public discussion. They are a policy afterthought, as invisible in their potential deaths as they were in their lives.
The broad arguments against capital punishment, male and female, are widely known: It is applied unequally to the poor and unequally by race; innocent people have likely been executed; it does nothing to deter crime; it brutalizes all of society by heightening the general ambiance of violence. But when one examines the stories of the women on death rows around the country, all the rest seems doubly true. The females who draw death sentences seem to be the poorest of the poor, the most socially marginal, the least able to protect themselves in court with a well-funded and coherent defense.
And some of the women are doubtlessly innocent. Over 100 people have walked free from death row, victims of wrongful convictions. We can see the fallibility of the entire system by looking at the men. Since 1992 lawyers Barry Scheck and Peter Neufeld of the Benjamin N. Cardozo School of Law have used DNA testing to exonerate 12 men who'd received death sentences and 21 others who were convicted of homicide but received lesser sentences. In many of their cases, they were able to show they were absolutely not the perpetrators of crimes they'd been convicted of. There's no reason to doubt that the wrongful conviction rate for women is just as high, said Mr. Scheck.
For a great many of the women, however, the big issue is not so much wrongful conviction, but over-prosecution such things as the upgrading of charges and the ignoring of mitigating circumstances such as self-defense or a history of abuse or even mental illness.
The ACLU is conducting a study, due out later this year, on women on death row and the systemic elements of unfairness in how they got there. Over-prosecution-- that fact of death in so many female capital cases-- is being looked at, and Diann Rust-Tierney, director of their Capital Punishment Project, has indications it's widespread.
This reporter spoke with four different capital defense lawyers, who each noted that when it comes to women on death row, over-prosecution is one factor they often share. A lot of the women are overcharged, reports Aundre Herron, a staff attorney for the California Appellate Project, which files appeals for the condemned. A case that probably was manslaughter or second degree murder is charged as a capital crime. It should have been charged as a lesser crime because, maybe, the person's mental state wasn't right. That makes her an easy target for an ambitious prosecutor.
What makes these women such easy targets is often their unconventionality. Regardless of the validity of claims of mitigating circumstances, juries will be less sympathetic to a woman who's lived an untraditional lifestyle or committed a crime thought to be unwomanly. Perhaps this is because women, regardless of race, are often punished for being rebellious, sexual, or violent, or for otherwise breaking the expectations of gender.
"If there is a common thread that ties the women on death row together, it is the fact that they have not lived up to some societal norm," suggests Kathleen O'Shea, a former nun who edits the newsletter "Women on the Row" and who has developed an informal ministry among them. O'Shea is also the author of the most authoritative academic textbook on the subject, Women and the Death Penalty in the United States: 1900-1998. "As a society, we continue to demand that women behave in a certain way and we punish women who do not. This is clearly illustrated by the legal term 'unfit mother'. No man has ever stood before a judge, or served time, or been executed for being an 'unfit father.'
Almost 20 years after her trial, Sunny Jacobs would meet a man who'd sat on her jury. "He said that one reason they wanted the death penalty, she recalled, was that they wanted to make an example of a woman, and that would send a clear message to those criminals out there."
Though the facts in her case were different from Ms. Jacobs's, Brittany Marlowe Holberg's status as a prostitute and crack addict were central to how an Amarillo, Texas jury reacted to her claims of self-defense in her 1998 murder trial.
She'd killed an elderly man, A. B. Towery, 80, and had left behind a horrible and bloody crime scene 58 stab wounds on the dead man. Holberg, then 25, claimed Towery was a client who'd attacked her; she'd been defending herself, there had been a struggle, and in a cocaine-induced madness she had freaked out.
Though she presented supportive evidence for her story; though there was testimony to the victim's violent history with his ex-wife and children; though a psychiatrist testified that Brittany was suffering from battered wife syndrome, post-traumatic stress disorder, and a cocaine addiction, the jurors found it hard to believe that an elderly citizen could have employed a prostitute.
In doing this, they dismissed the underpinnings of Brittany's defense. "My father didn t even like the word 'sex' ; he was old fashioned," one of Mr. Towery's son swore in the courtroom.
Never mind that a former prostitute, Diana Eileen Wheeler, testified that she'd had something like ten dates with Towery in 1994; she'd even taught him how to clean the stains off of his Mel Mac dinnerware. Never mind that elderly men, even puritanical ones, have been known to employ the services of sex workers. The prosecutor just rolled his eyes to the jury in disbelief, an action that seemed to be enough to discredit whatever Wheeler told them.
Once the D.A. had his conviction nailed down, he won a death sentence against Brittany, who had no prior record of violence against anyone, by bringing in jailhouse informants who swore that she had made all manner of bloodthirsty confessions to them.
Today, Brittany Holberg is 30, and one of eight women awaiting execution on the female death row at the Mountain View unit of the Texas prison system in Gatesville, an aptly named town with six different jails within it. The Mountain View unit is where the condemned women stay while their appeals wind their way through federal and state courts. Should their appeals fail, they are sent down to the men's prison in Huntsville, some 180 miles away, where they are put to death by lethal injection.
Ms. Holberg is currently contesting her conviction through writ of habeas corpus proceedings, charging ineffective representation and prosecutorial misconduct at trial. Soon after her appeals lawyer filed her writ, the Randall County D.A. asked to be recused from arguing the case. According to the Amarillo Globe-News, Holberg's two- inch-thick habeas corpus filing includes several affidavits from women who admit to being convicted of crimes, alleging [the D.A.] and his employees attempted to make deals to elicit false testimony against Holberg.
To visit with Brittany Holberg, a reporter has to apply to the Texas Department of Criminal Justice, obtain the inmate's permission, and agree to a dress code that includes no halter tops, no mid drift [sic] exposure, no low-cut blouses, etc.
Ms. Holberg on the day we meet is wearing standard prison whites and is sitting in an absolutely centered position within a glass and steel box at a special visitor's center within the women's prison. Though she is presented like a specimen in a museum-case, there s something moving about how Brittany has composed herself. Her hair and make-up are carefully done; her upright posture bespeaks a quiet defiance. Amazingly, after hundreds of interviews with world leaders and film stars, I am struck dumb by the setting. I've never interviewed a person in a box before. I find it hard to be talking to an individual about the conditions of her planned death. She's healthy. She doesn't have cancer or AIDS. But there's a huge machine working to scientifically, legally, kill her.
Brittany is uncomfortable too. She doesn't know me from Eve, but I'm asking her about her deepest thoughts and nightmares, while the prison officials are, no doubt, listening in.
At first we chat-- I swear-- about the weather, and then, guardedly, about her existence before death row. Brittany says her parents were hippie-drugsters, but she doesn t blame them for her fate. She made a teen-aged marriage and has a beautiful daughter from that, Mackenzie, now age 10, who lives with her father in Tulsa.
At 20, Brittany left him, moved back to her hometown of Amarillo, fell in with a bad crowd, and got hooked on hard drugs. To support herself and her habit, she began working in the sex trade. Because of the appeal, I can't talk about that night, Brittany whispers, referring to the crime. I wish I could talk to you about it. I would, I would tell you everything."
The day after her jury came in with their lethal sentence, Brittany was transported to the death row at Gatesville: "I can't even explain to you, she sighs, what it s like to have someone say, 'you are sentenced to die.' It's words. You feel helpless, numb. It's almost as if your emotions shut you down."
For weeks, Brittany lay catatonic in her cell, staring at the wall, not quite believing where she'd landed. Eventually, I made myself get up. I learned how to stop focusing on where I was, whether it was right or wrong, because all that doesn't matter. The desire to live was what mattered, not the reality of her surroundings. "I don't dwell everyday on the fact that I'm on death row," she tells me. "I would go mad if I sat here everyday and thought to myself, 'The State of Texas wants to kill me. They want to put a needle in my arm and they want to kill me.' So I have learned to take every day one little step at a time."
Having a daughter gave her impetus to pull herself together. Mackenzie is the reason I am where I am right now, mentally, Brittany says, smiling. "I cannot live, and I cannot die, knowing that my child has to live with the horror that these people tried to say about me, the story of the crime, their depiction that I was a cold-blooded person."
Leaving a decent record for Mackenzie, seeking to be fully present in whatever time she had left, plus detoxifying from the cocaine, transformed this woman.
When one meets Brittany Holberg, she seems difficult to decode. She is muted and, at the same time, open. Though she is poorly educated, there is a thoughtfulness to her. It was carelessness about her very being that landed her in Gatesville, but today, there's nothing careless about Brittany Holberg. Brittany spends her days reading, writing to her family, and working on her appeals. And she keeps up with the death penalty debate out there in the free world.
Indeed, she closely followed the situation of the late Gary Graham (aka Shaka Sankofa), another Texas inmate, executed in June 2000, who many thought innocent. "When they'll execute someone under those conditions, "Brittany notes, "I realized, at that point, it doesn t matter whether I'm guilty or innocent, this has now become a very political thing... At this point, they're just killing to kill."
When, after an attempted breakout by some men on the Huntsville death row, Texas imposed new harsher conditions on all death row inmates, Holberg wrote to Kathleen O'Shea's newsletter:
"Since this occurred, you would not believe the treatment we are given. Just two weeks ago, we were informed that not only would we be strip-searched for our one hour of recreation a day, but also when taken for a shower. So for the last two weeks, we have been stripped no less than six times a day. This is every day, sometimes at times like 2:30-3 a.m., and we never leave the building or our cells for that matter."
It took guts to complain. And the authorities didn't like it. But Brittany Holberg spends a lot of time seeking small justices. Spend a few hours with Brittany, and one begins to think that inside prison, this hard luck girl/woman finally grew up. Unless she is totally shucking me, this is not a vicious person.
As she speaks about the possibility of a mediation process with her victim's relatives once her appeals are settled, the idea of killing her seems utterly pointless. Who could it possibly serve? No one, except perhaps the prosecutor who numbed the good citizens of Amarillo into feeling a bit safer about crime when he brought them a death sentence.
Brittany is the symbolic witch they'll all burn in the hope of expiating a larger, far more complicated problem from their midst. By sacrificing her, they won't solve that problem. In fact, they will extend the cycle of violence, and produce a whole new generation of crime victims among Brittany's relatives. If Brittany is executed, then little Mackenzie will be left to join the ranks of the families of murder victims. Witch-burning or no, the killing will be just as traumatic for her, an innocent, as it was for A.B. Towery's children.
As I write this, there are some 3,514 men and women on death rows in 37 states from California to Texas to Florida. Almost all of them have mothers and wives, partners, lovers, daughters, children, friends, grandmothers. Count the numbers. This violent circle reaches far and wide. And it is here where women bear the heaviest burden of this deadly epidemic. They bear it stoically, often silently. But the cost to them is huge.
I am sitting in a Delaware restaurant with Barbara Lewis, a Wilmington pharmaceutical worker whose son, Robert Gattis, 41, has been languishing in jail for almost 13 years, 11 of them on death row.
Little Delaware, the second smallest state in the union, has the highest per capita execution rate in the country topping that of Texas and Florida. This is a state that had public flogging laws on the books until the 1960s.
"My son has had six dates set to die," she tells me over coffee. Ms. Lewis's sensitive face reflects her 60 years. "That's been a reality since he was sentenced. They told me they were going to do it how and when. There aren't words to describe this. No one understands what it is like for somebody to bind your child and put him to death. There's no clean way to do it. It's killing me, slowly."
For more than a decade, Ms. Lewis's existence has centered on her weekly visits to Robert. She is his lifeline to the outside world, his last connection to humanity. She has three other children, several grandchildren and a job she must keep, lest the entire family go down in flames. Her bedtime prayer is, "Oh Lord, help us all to keep going."
Lewis says she feels society blames her for her son's deed. She had to endure the unthinking glee with which her co-workers greeted the execution of Timothy McVeigh; some, as if it was a football game. Most nights she doesn't sleep. For a while she took to working the night-shift as a way of doing something useful with her anxiety. But what do you do with an endless parade of colleagues, neighbors, church parishioners, who loudly proclaim their support of capital punishment? "When you say that, you're saying you want my son dead," Barbara Lewis always tells them.
And the answer comes back: "Barbara, we weren't talking about you!"
But it is about her. If all fails, it will be Barbara Lewis who will have to comfort her son in the days before the execution. She'll have to be present at that terrible death moment so that he doesn t die without someone nearby who loves him. Most certainly, it will be Barbara who will have to bring her Robert's body home from the execution chamber, and it is she, when it is all over, who will have to bury the child she once gave life to.
Meanwhile, what Ms. Lewis sees when she visits her son is devastating. "He is housed in a 24-hour lock up-- 45 minutes of recreation three days a week," she explains in a whisper. "He needs interaction with other human beings. It's taking its toll on him. He's become morose. You treat people like animals and you get what you pay for."
Now, Robert Gattis's crime was horrible in a fit of rage, he shot his estranged girlfriend, Shirley Slay. Ms. Lewis partly blames herself. She'd lived in an abusive marriage for many years. She wonders now if her son didn't see too much as a child.
The facts in Gattis's case read like those in a hundred other capital cases that end in a death sentence: a crime, court appointed defense lawyers working at $60 an hour, some turns of bad legal luck.
Gattis's special legal misfortunes began, Ms. Lewis believes, when a local prosecutor was criticized for being lax about black-on-black crime. It's her view the Gattis case was used to disprove the accusation. Thus what might have been manslaughter in another locality or time was instead murder. The second piece of misfortune was that Gattis was tried around the time a new state law was enacted transferring death penalty decisions from the hands of 12 unanimous jurors to a single judge. Gattis's judge exercised his newly-won powers by ordering an execution.
During the trial, Ms. Lewis tried to reach out to the victim's family, but her efforts at reconciliation were thwarted by the prosecutors who had a stake in the enmity between the two families. There's not a day that I don't think about that family, she says.
The current status of Gattis's case, and life, is that all of his appeals have been exhausted. His last legal hope lies in Delaware's courts reviewing whether recent decisions on the constitutionality of judge sentencing apply retroactively (since his crime was committed under the old law and tried under the new, now unconstitutional, one). If it does not go his way, he will be given a new, final, date to die.
Somehow-- I can't imagine how-- Barbara Lewis just keeps going. She goes through periods of nervousness, depression. Several of her daughters ' children live with her, and she worries, perhaps more than the average grandmother, about the violence they see on television.
Remarkably, whenever she can, Barbara Lewis tries to stop the death penalty for everyone. With her best friend ( my chosen sister ), Anne Coleman, whose daughter was murdered, they are a two-woman lobby against Delaware's state-sponsored killing. Together they've founded Because Love Allows Compassion, which offers support to both crime victims families and to the families of death row inmates. "I also hope that our communities can learn to accept that killing is a tragedy on all sides, "she once told a reporter. "There is never just one set of victims."
Nonconformists, caretakers, victims alike: The circle of violence never ends. What Barbara Lewis, Sunny Jacobs, and Brittany Holberg know, and what the majority who still support the death penalty have yet to learn, is that capital punishment kills the humanity in us all.
